Music Rights for Plays and Musicals January 21, 2008
Posted by Gordon Firemark in : Theatre law, entertainment law , trackbackRecently, received the following question via the ‘net, so I thought I’d answer here, since it’s a common and often misunderstood area.
I wrote an original play … We have a DJ who spins slightly different cues
every night, as the show has a bit of improvisation. Are we responsible to
get music licensing rights for playing this music? We do not include any
description of the artists, use their likenesses or in any way advertise to
capitilize on their work. The music is important to the arc of the show, but
under the control of our DJ. I have heard several conflicting (and
confusing) opinions on this matter and was wondering if you could tell us
what you think.
Well, first my answer is that yes, they must obtain clearance to include the music in the show.
Grand Rights vs. “Small” Performing Rights
Ultimately, the analysis of this question depends on the nature of the use of music. While it’s true that most venues pay ASCAP and BMI for blanket music licenses, which allow for the performance of music, the rights granted by these performing rights organizations cover only the so-called “small” performing rights.
Small performing rights essentially means the right to play or perform the song publicly, in an out-of-context way, where the song does not play an integral role in the overall performance. Typically, this includes radio airplay, live performances in a restaurant or bar. In a more theatrical situation, one example might be the use of a CD to play pre-show or post-show music, or in a revue type performance or concert.
Where the music in question is ‘important to the arc of the show’ as in the question at hand, we’re talking about so-called “Grand” performing rights.
Grand Rights, sometimes also referred to as “Dramatic Performing Rights” are for performances of the composition in a dramatic setting, such as within a stage play or musical, an opera, ballet, etc., where the compensation becomes part of the story, plot or theme of the performance. An example of a grand rights use is where a character in the show sings a popular song, or recites the lyrics to a favorite.
Grand Rights are not administered by ASCAP, BMI or any other, similar performing rights society. Instead they’re controlled by the composer and/or music publisher. Thus, in order to secure the necessary rights and permissions, the producer of the show must identify each song’s composer and publisher, and negotiation the terms of a license.
License Terms
Grand Performing Rights licenses may vary widely in scope and expense. In some instances, the playwright may have prenegotiated a royalty rate to be paid for uses of songs contained within the show, in others, the producer may have to offer a royalty based on a percentage of gross box office receipts. In many cases, the publisher of the song will want a guaranteed minimum fee.
In this day and age of the ‘Jukebox Musical’, this type of licensing is becoming more commonplace, so publishers have some sense of how to proceed, so, when multiple songs are included in a show, it’s often possible to negotiate a favored-nations deal, or a “pooled” royalty for music, in which each song recieves a pro-rata share of the pool.
Another point of concern is the scope and duration of the license granted. I’ve been brought in to help with more than one musical where songs have had to be ‘pulled’ and replaced because of license expirations, or ‘holdback’ provisions imposed by publishers. Obviously, changing a show mid-run can be a hair raising adventure, and may disappoint audiences and critics.
Conclusion
The best advice I can offer to directors and playwrights is to anticipate these issues when selecting music to incorporate into a show. Plenty of time should also be allocated to the licensing project. There’s nothing worse for your bargaining position to be negotiating the royalty in the hours before the show is slated to open.
And of course, the help of a lawyer experienced in both music and theatrical matters can be invaluable in these situations.
Comments»
[…] just posted a short piece on my other site - Theatrelawyer.com about using pre-existing music in a play or musical show. It’s a short discussion of […]
Here’s a question to piggyback on the question answered above. What if the performance is free and the producer and performer are making no money on it? Do they still have to pay royalties?
Ross -
Yes, the issue isn’t whether the producer and performer are making any money. The songwriter, publisher and record label are in business to make money, and the song(s) are the product they sell.
Copyright law doesn’t distinguish for-profit, from non-profit in determining whether a use is infringing… the rule is that only the copyright owner has the right to make/distribute copies, derivative works, and to perform or display the work in public. If someone else does so without permission, it’s copyright infringement.
That’s not to say that some copyright owners aren’t sympathetic to non-profit or low-budget productions, and might grant free or cheap licenses, if asked.
Best bet in these situations, is get permission.
-Gordon
Thank you for this post. I’m a lawyer (with a small amount of copyright experience, although not in this area) as well as a playwright, So this is of particular interest to me.
My current project involves a musical theatre adaption of a work from another medium, working in the discography of a (now-defunct) performing artist (band). Like — a stage version of “Citizen Kane” incorporating music by The Bangles (except, you know, not that *stupid*).
My question — and I hope I can phrase this correctly — deals with music rearrangements. This isn’t a typical “jukebox” musical where the songs would be simply sung or played. The music in places would be orchestrated (slowed down, jazzed up) to fit the dramatic necessity of the scene. Perhaps combined with other songs (an overture?). Minor lyrics changes too (”he” to “she” and vice versa).
In your experience, do Grand Rights licenses typically allow re-arrangements of the songs, or is that another whole level that one has to deal with? I get the sense that Grand Rights licenses are not boilerplate, and I’m wondering if you could shed some light or had any experience with musical re-arrangements in a Grand Rights context.
Thanks in advance….
Actually, it still sounds like it fits within the “jukebox” genre. I think you meant that it’s not just a “concert”, but a musical with a storyline, and that the songs are part of, and advance that story line.
A “Grand Rights License” isn’t a standard form… it’s a custom-tailored document, so include what you need.
Bottom line is this: The Grand Rights licensing involves a negotiation… so be sure the rights you need (such as the right to re-arrange, orchestrate, change lyrics, and to compile into an overture are included in the negotiations.
In many cases, the rights holders will insist on a right of approval over such changes, so be sure to leave enough time to go through all the hoops before the show’s ready to hit the stage.
Many thanks for the post on this topic. In a magician’s routine in a public performance, the use of music as background could be considered integral to the the routine, or a part of the “story” being presented, but its use is typically to augment the effect and provide an additional emotional hook. Thus, it appears as though the music could require a grand rights license. Generally, would you see it this way?
Regards, and thanks.